J.P. Mittek, J.
1. The appellants were tried upon charges under Sections 394 and 323, Penal Code, by a learned Assistant Sessions Judge sitting with a Jury. By a majority verdict of four to one the Jury found each of the appellants guilty of both the offences.
The learned Judge accepted the said majority verdict in each case, convicted each of the appellants of the relative offences and sentenced him to suffer rigorous imprisonment for seven years in respect of the offence under Section 394, Penal Code, but passed no separate sentence in respect of the offence under Section 323, Penal Code.
2. Iman Ali Khan is the appellant in Appeal No. 242 of 1954. The other two appellants filed a separate appeal, being Appeal No. 246 of 1954. Both these appeals are being disposed of by this judgment.
3. The Prosecution case was that the appellants and one Bahadur 'alias' Lal Bahadur Sing committed robbery at the house of the complainant Dr. Atul Chandra Chatterji in village Dupsa, Police Station Kalna. The robbery took place shortly after mid-night on 14th Chaitra, 1360 B. S., corresponding, to 29-3-1954. The house where the robbery took place consisted of two 'mud-walled huts, each hut having two rooms.
In a room of one of the huts Dr. Chatterji had his dispensary while the other room was utilised by him and his wife as their bed room. At the material time, the other hut was occupied by Dr. Chatterji's daughter Sadhana and other members of the family. Two sons of Dr. Chatterji aged, respectively, 10 and 6 years were, on the day Of the robbery, away from the village.
After the robbers entered the hut where the complainant and his wife were, appellant Ela Hari is said to have pushed the complainant down on the floor and got upon his breast and attempted to cut the complainant's wind-pipe. The complainant, an elderly man of 62 years, struggled with Ela Hari but did not escape being hurt.
The complainant's wife Gayatri Debi rushed to his rescue and implored Ela Hari not to take her husband's life. Appellant Iman Ali and Heda-yat Shaik dragged Gayatri Debi into her bed room which was the western room and there robbed her of her ornaments and caused her certain injuries. According to the complainant and his wife, they recognised the three appellants in the light of the hurricane lantern which was burning in the bed room.
Hedayat Shaik is said to have put out the lantern at some stage and thereafter to have ransacked the room with the help of an electric torch. Hearing the cries of her parents, Sadhana who slept in the other hut came out of it and recognised Bahadur who was standing outside with a lathi in hand. Bahadur threatened her whereupon a relation of the complainant, Bidyut Barani by name, dragged Sadhana inside the hut and bolted its door. Bidyut Barani also recognised Bahadur who was an up-country man in the employment of an influential villager called Nababjan Khan.
Appellant Iman Ali is Nabab Jan's son. Ela Hari and Hedayat were residents, respectively, of Kharinan and Par Dupsa, two neighbouring villages. The robbers took away considerable properties including ornaments and cash. Shortly after they left, a number of villagers, roused and/ or attracted by the hue and cry which the complainant and the members of his family raised, turned up. Amongst them, a man, by name Mon-matha Gorai, was the first to turn up. Monmatha Gorai too recognised Bahadur whereupon he shouted that Bahadur, the up-country-man, had attacked the household of Dr. Chatterji.
According to the Prosecution, the complainant and his wife reported to the neighbours who gathered there after the robbery that they had recognised the miscreants but were not willing to divulge their names. The complainant and his wife, however, mentioned to their daughter the names of the robbers. Both the complainant and his wife having been injured, it was not until early morning that the complainant was able to set off for the thana which was about 14 miles away. The journey to the thana was by a bullock cart and it was not until 9 a. m. that the first information report in the case was lodged.
In the first information report the complainant mentioned the names of the present appellants and stated that he had not divulged to anybody the name of any of the robbers lest they should come to know of their recognition and abscond. After the investigation which followed this ejahar, the appellants as well as Lal Bahadur were committed to be tried.
4. The defence of each of the appellants was that he had hot taken any part in the robbery concerned and was accordingly innocent.
5. Although the complainant and his wife were the only witnesses to testify to the identity of the robbers, a number of neighbours were called to corroborate the complainant's evidence that he had recognised the persons who committed the robbery. It appeals that the witnesses called in the case were examined by the Police in the course of the investigation and that their statements were recorded under Section 161, Criminal P. C.
6. Mr. S. S. Mukherji appearing on behalf of appellant Iman Ali Khan first addressed himself to certain misdirections in the learned Judge's summing-up. Mr. Mukherji then placed before us the evidence in the case and argued that the Prosecution had failed to connect his client with the crime.
7. As to misdirections, Mr. Mukherji argued that while dealing with the effect of non-examination of material witnesses, the learned Judge had omitted to indicate what precise presumption arose under Clause (g) of Section 114, Evidence Act. While dealing with the topic, the learned Judge was content merely to say that by reason of non-examination of material witnesses the Jury were entitled to draw an inference unfavourable to the Prosecution.
In my view, the direction by the learned Judge can serve no purpose unless it is coupled with the further direction that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. In the circumstances of this case, it was the duty of the learned Judge to point out that in the absence of any satisfactory explanation being given by the Prosecution for not calling certain of the witnesses; the Jury were entitled to presume that had those persons been called, they would not have supported the Prosecution case.
8. Mr. Mukherji next argued that the learned Judge misdirected himself as to the purpose of Section 162. Criminal P. C. The direction complained of in this regard was to the following effect:
'The villagers who have corroborated Atul Babu and his wife that they told them about their recognition of the robbers at the same time without disclosing or refusing to disclose their names are Satya Garai, Manmatha Garai, Anil Bag, Dulal Santra, Satish Bag and Nalini Bag. Of them, Satya Garai and Nalini Bag were not examined before the committing Magistrate. So the statements of these two witnesses to the Daroga may be looked into.
Satya Garai stated to the Daroga that Atul Babu and his wife told him that they had recognised four dacoits and that they did not disclose their names to him. So it is apparent that Satya Garai mentioned to the Daroga the fact of recognition which is alleged to have been mentioned by the husband and wife to him in the night soon after the occurrence was over. In his evidence now Satya Garai says that Atul Babu told him of his recognition of three dacoits while his wife's version was that she had recognised two.
So at any rate the number of robbers claimed to have been recognised by Atul Babu and his wife as is appearing from Satya Garai's statement, was not less than three which is the number of the accused persons undergoing trial. As regards Nalini, nothing has been elicited in cross-examination that he made any statement to the Daroga inconsistent with his present version, viz., that Atul Babu and his wife gave out in the very night that they had recognised the dacoits and at the same time refused to divulge their names.'
It must be observed at once that the statements made to the Police by the witnesses concerned were utilised at the trial for the purpose of contradicting their evidence in Court. This is not only, permissible but is one of the ways of impugning the evidence of witnesses called by the Prosecution. The way to make use of these statements is provided by Section 145, Evidence Act.
It is at the same time trite knowledge that a person's statement made to the Police in the course of an investigation and recorded under Section 161, Criminal P. C. is not substantive evidence. This the Jury must be told to bear in mind. Section 162 of Criminal P. C. allows such a statement to be used only for the purpose of contradicting the evidence of a witness in the manner provided by Section 145, Evidence Act.
In this regard, the recent amendment does not make any difference; it now enables the Prosecution as well, but with the permission of the Court, to contradict a witness by his statement to the Police. There is no doubt that in inviting the Jury to look at the statements made by the wit-nesses concerned to the Police in the course of the investigation, the learned Judge sought to ex-pose the contradictions between what was stated to the Police and what was stated in evidence in Court.
What, however, the learned Judge omitted to do, -- which, in our view, was a serious omission, -- was not to have told the Jury that a statement to the Police was not substantive evidence and that its purpose was merely to contradict the evidence in Court.
The learned Judge's direction that, as regards certain witnesses, nothing had been elicited in cross-examination to show that they had made any statement to the Police which was inconsistent with their evidence in Court, was, to my mind, an invitation to the Jury to regard that the evidence of the witnesses concerned was in some way corroborated by their statements to the Police.
Factually, such a direction could not be wrong, but if Section 162, Criminal P. C. enjoins, as it, in my view, does, that the only purpose for which a statement recorded under Section 161, Criminal P. C. could' be used, is to contradict the evidence of a witness then no Court including a Jury can rely upon such a statement to the Police as in any way corroborating the evidence of the author of that statement.
In any event the omission by the learned Judge not to have warned the Jury that the statements of the witnesses made to the Police in the course of the investigation were not to be regarded as substantive evidence, was, in our view, a material non-direction amounting to misdirection.
9. Mr. Mukherji next pointed out that it was wrong for the learned Judge to have told the Jury that the evidence of the complainant corroborated his version in the first information report. This, in our view, must have been a slip on the part of the learned Judge and could not possibly have affected the Jury's verdict in the case.
In view of the first two matters urged by Mr. Mukherji, we thought it necessary to examine the evidence in the case so as to satisfy ourselves if the Prosecution case as to the identity of the robbers had been established beyond all reasonable doubt. Having examined the evidence, we are not satisfied that the case for the Prosecution as to this vital matter had been established beyond all reasonable doubt.
10. Reverting to the evidence, we find that the only direct testimony as to the appellants having participated in the crime was that of the complainant and his wife. According to the complainant, all the appellants were known to him. According to the complainant's wife, two of the appellants, namely, Ela Hari and Hedayat Shaik were known to her. The first information report, as we have said before, could not be lodged until 9 A.M. on the 29th March, that is, some eight or nine hours after the robbery.
Information to the Police was by no means delayed, for the distance between the village concerned and the thana was considerable. Nevertheless, some four or five hours elapsed between the occurrence and the complainant's departure for the Police Station. It is the complainant's evidence that, although he recognised each one of the appellants, he did not divulge their names to anybody lest they should cause further assaults upon him and his family.
In the first information report, however, the reason given by the informant as to his not having disclosed the names of the appellants was that should the appellants come to know their recognition, they would abscond. The explanation given by the complainant's wife Gayatri Debi and by his daughter Sadhana for not disclosing the names of the appellants was that if the robbers should come to know of their recognition, they would use violence against the complainant and his family.
A reading of the first information report brings out clearly the fact that the complainant was quite conscious of the need for an explanation as to his omission to mention the names of the robbers to his neighbours when the latter arrived shortly after the robbery. In view of the different reasons given for the complainant's conduct in not mentioning the names of the robbers to his neighbours, the Jury should, in our view, have been asked to approach their consideration of the evidence as to identity with a certain amount of caution.
This evidence of recognition is not corroborated by any of the neighbours, for neither the complainant nor his wife Gayatri mentioned the name of any of the appellants to anybody. The neighbours called to corroborate the complainant's evidence that he had mentioned the fact of his recognition of the robbers to his neighbours maintained that they did not enquire as to the identity of the robbers.
It is difficult to believe that after an occurrence such as this the villagers, when told of recognition, would not press for the identity of the miscreants. The evidence in the case disclosed that so far as appellant Iman Ali was concerned, there was enmity between the complainant and Iman Ali's father Nabab Jan. It was established that in connection with a title suit filed against Nabab Jan in the Court of the learned Munsif at Kalna the complainant was actively helping the plaintiff.
Indeed, on the 29th of March the complainant was to have given evidence in the case on behalf of the plaintiff. In view of the evidence as to enmity and in view of the fact that the complainant did not disclose to any of his neighbours that he had recognised the present appellants, it cannot be said that the evidence led on behalf of the Prosecution as to the identity of the appellants was of the character which excludes doubt.
In my view, the evidence of the neighbours that no one was interested or curious enough to know the identity of the robbers cannot be believed. Looking at the evidence and considering all the circumstances of this case, we think that each of the appellants should, on the facts be given the benefit of doubt. That being so, the verdict of the Jury as affecting each of the appellants must be set aside.
11. We must accordingly allow both the appeals, set aside the verdict of the Jury against each appellant and the conviction and sentence which followed. The appellants are discharged from their bail.
12. I agree that the appeals should be allowed, but I should like to add some observations.
13. The first misdirection alleged is that the learned Judge did not give a proper charge as to the non-examination of some witnesses. The learned Judge dealt with the topic in a separate section of his charge; he told the jury that the defence had commented on the non-examination of several witnesses, viz., Kshanta Bala, Bhutnath Karmakar, Balai Bag, and the cartman Gopi Santra. He recited the law as follows; that if a material witness was withheld without reasonable grounds by the prosecution, the jury might draw an inference unfavourable to it. He then proceeded to deal with each of the above persons and after stating the relevant facts, asked the jury to consider whether the witness would be in a position to give material evidence, and whether the prosecution had given sufficient reason for not examining him.
Mr. Mukherjee has commented on the use of the term 'inference' instead of the term 'presumption', and has urged that the nature of the unfavourable presumption which the jury might draw was not explained. Section 114, Evidence Act, uses the word 'presume', and there can be no doubt that the use of the term 'presumption' is strictly correct. But the loose use of the word 'inference' in the context could do no harm.
The learned Judge might also have said clearly that if the prosecution did not produce for examination a witness whom it could have produced, & the witness was a material witness, the Jury might presume that if the witness had been examined he would not have supported the prosecution case.
But the section of the Charge taken as a whole, with the statement repeated by the learned Judge on several occasions that the jury might draw an inference unfavourable to the prosecution if it had withheld a material witness without sufficient cause, conveys clearly an idea of the nature of the adverse presumption which may be made in such circumstances, viz., that the witness if examined would not support the prosecution case. I do not, therefore, think that there was any misdirection on this point.
14. The next point urged is that the learned Judge used statements recorded by the police as substantive evidence or as corroborative evidence, in contravention of the provisions of Section 162, Criminal P. C. In this respect I agree that there was some misdirection, but not to the extent urged, by Mr. Mukherji.
According to the prosecution case, the robbers who entered into the hut of the complainant Atul Chandra Chatterjee and assaulted him and his wife were recognised by both of them -- all the three appellants by the complainant and two of them by his wife. There was corroborative evidence as to such recognition of two inmates of the complainant's house, viz. his daughter and his nephew's wife.
Atul Chandra Chatterji stated in the first information report that he had not divulged the name of any of the accused -- whom he named in the F.I.R. -- and whom he claimed to have recognised -- to any of the neighbours who came to his house that night on hearing the row, because they might come to hear of such recognition and abscond. In his deposition in the Sessions Court, he said that he did not tell the neighbours the names of the assailants whom he had recognised, lest they might abscond or lest they might return and do further harm to him.
The question was whether Atul Chatterjee and his wife had really recognised the assailants. Therefore the point whether at least the fact of recognition had been mentioned to the neighbours that very night was important. The neighbours examined were Satya Garai, Manmatha Garai, Anil Bag, Dulal Santra, Satish Bag and Nalini Bag. They stated in the sessions Court that Atul Babu and his wife had said that night that they had recognised the assailants, but had not named them.
In order to contradict these witnesses on the point, the defence elicited certain statements to the contrary made by some of these witnesses to the investigating police officer. In respect of four of the witnesses, viz. Nalini Bag, Anil Bag, Dulal Santra and Satish Bag, no statement inconsistent with the statement on the point in the Sessions Court was elicited, and the learned Judge pointed out this fact to the jury.
It has been urged that this was indirect use of the statements before the police for the purpose of corroboration, and this was therefore a contravention of Section 162, Criminal P. C. But the fact that out of the six witnesses concerned, two were contradicted with reference to the statement made by them to the police and four were not so contradicted, was a fact before the Court and the jury, and I do not think that the learned Judge made any error of law in pointing out the fact to the jury.
The learned Judge did not seek to draw the inference that before the jury the witnesses must have made the same statement as the statement made by them in Court; he merely drew attention to the fact that the four witnesses had not been contradicted with reference to their statements before the police.
This could not be regarded as use of the statements before the police in contravention of Section 162,of the Code; it is no more open to objection thatthe evidence of a police officer, always admittedwithout objection, that after examining a witnessA, he began to look for X, Y and Z as suspects.
15. I may mention that in a recent judgment of the Supreme Court, William Slaney v. State of Madhya Pradesh, : 1956CriLJ291 (A) Bose J. delivering the judgment of himself and S. R. Das, C. J. went further, observing as follows (p. 132).
'The fact that the appellant did not attempt to confront any of the witnesses with their statements before either the Committing Magistrate or the police on this point shows that the witnesses told a consistent story from the start.'
Accordingly, I must hold that in so far as the learned Judge drew the attention of the jury to the fact that no discrepancy had been elicited by the defence in respect of the evidence of Nalini Bag, Anil Bag, Dulal Santra and Satish Bag, it was a proper direction and not a misdirection.
16. In respect of Satya Charan Garai, however, and the statement by which he introduced the statement of Satya Charan Garai to the police, it must be held that the learned Judge went wrong. The learned Judge stated in respect of Satya Charan Garai and Nalini Bag that they had not been examined before the Committing Magistrate and so the statements of these two witnesses to the Daroga might be looked into.
This would indicate to laymen like the jurors that the statements of the witnesses before the police officers were substantive evidence, and the learned Judge did not warn the jury that the statements to the police could only be used by the defence for the purpose of contradiction and were in no case substantive evidence.
If the learned Judge had pointed out the discrepancy in the statement of Satya Charan Garai in Court and his statement before the police that would have been quite proper. But the learned Judge used the statement of Satya Charan Garai before the police in such a form as to give an impression that he was using it as a substantive evidence and this was of course quite wrong.
17. This misdirection made it necessary for us to examine whether there was sufficient evidence to support the charge beyond reasonable doubt. I must, however, agree with My Lord that on examination of evidence it cannot be said that the evidence as to recognition of the three appellants must be true beyond reasonable doubt.
The fact stands out that Bahadur a servant of Nawabjan, father of one of the appellants Iman Ali, was recognised by two of the inmates of the house and also by some of the neighbours, and the name of Bahadur was known to the neighbours that very night, and in fact there is the evidence that the Chaukidar and some of the neighbours went to look for Bahadur, servant of Nawabjan, at the house of Nawabjan that very night but could not find him.
If Bahadur a servant of Nawabjan was recognised and was actually looked for that night, the reason given by Atul Chatterjee for not naming Iman Ali, son of Nawabjan and other culprits becomes absolutely unconvincing. The suspicion naturally arises that either because there was no sufficient light in the room or for some other reason, they failed to recognise the men who had entered into the room and assaulted Atul Chatterjee and his wife; and that because of the recognition of Bahadur and because of the admitted enmity going on between Nawabjan and Atul Chatterjee, Atul Chatterjee suspected that Iman Ali, son of Nawabjan and other members of his party might be concerned.
It cannot of course be said that the evidence as to recognition was necessarily false. The evidence of Atul Chatterjee and his wife Gaitri Eala Debi corroborated by two of the young ladies of the household might also be true; but in the circumstances the accused must be regarded as entitled to the benefit of reasonable doubt.